While I'm against the death penalty for child rape in all cases, I agree with Professor Berman that the Kennedy case is a particularly poor choice of a defendant to execute. In the alternative, Berman suggests a case in South Carolina which would certainly make more sense for capital punishment:
Vinson Filyaw was sentenced to the maximum sentence of 421 years, served consecutively, for kidnapping a 14-year-old girl a year ago and sexually assaulting her in a dirt bunker for 10 days near Elgin. Filyaw pleaded guilty Tuesday to kidnapping, 10 counts of first-degree criminal sexual assault, two counts of second-degree criminal sexual assault, impersonating a police officer, possessing explosives and attempted armed robbery.
Filyaw, 37, posed as a police officer and handcuffed the girl last September as she walked toward her home from a school bus stop. He took her into the woods and kept her captive in a bunker booby-trapped with homemade explosives. The girl escaped after using Filyaw’s phone to send her mother a text message, helping authorities find the bunker’s location.... Filyaw said the rape and kidnapping spurred from a grievance with the Kershaw County Sheriff’s Department over a separate charge of sexual assault on a 12-year-old girl from 2005.
I agree that not only from a moral perspective, but also a strategic one, this case would make a lot more sense for prosecutors to have used as the test case for capital child rape statutes.
It might have made more sense if the goal is to uphold the death penalty. But the Kennedy case is a fine first impression if the goal is to assess the sentence in light of the more typical case likely to receive such punishment.
Extremist facts make bad law, so the Kennedy case might receive a more thoughtful debate, and besides, it's been floating in the system a while. The Filyaw case won't make it that far up the appellate ladder for a while. best,
Posted by: Gritsforbreakfast | September 24, 2007 at 06:04 AM